Gough, R v

Sentence for a deliberate breach of an anti-social behaviour order is not determined solely by the penalty available for the underlying conduct. Although the relevant sentencing guideline makes harassment, alarm or distress the primary consideration, it must be read in its wider context. An immediate and intentional breach, particularly against a history of like conduct and disobedience of court orders, may show very high culpability. Harm includes the undermining of public confidence in the administration of justice. Several aggravating factors may justify a sentence above the guideline range. Under the Criminal Justice Act 2003, a finite custodial sentence may also properly pursue deterrence by reducing likely further offending.

The applicant was convicted after a jury trial at Portsmouth Crown Court of breaching an interim anti-social behaviour order and was sentenced to 48 weeks’ imprisonment. The order required him to cover his genitalia and buttocks in public places, subject to specified exceptions. Immediately after it was made, he left the court naked and declined an offer of clothing.

He sought leave to appeal against sentence only. He contended that the sentencing judge had wrongly selected a term designed to keep him in custody until the full hearing of the anti-social behaviour order, and that the sentence was excessive under the Sentencing Council guideline. The issue was whether 48 weeks’ imprisonment was manifestly excessive for this deliberate first breach of the interim order.

1. The application for leave to appeal against sentence was refused. The 48-week sentence was neither manifestly excessive nor arguably so.

2. The case did not fall easily within the ordinary pattern contemplated by the Sentencing Council guideline for breach of an anti-social behaviour order. It was closely analogous to contempt of court because the offence consisted of a deliberate and immediate defiance of an order just made and personally served on the applicant.

3. The guideline’s direction that sentencing should primarily reflect the harassment, alarm or distress involved had to be read with Lamb [2006] 2 Cr App R (S) 11, the line of authority exemplified by Braxton [2005] 1 Cr App (S) 36, and R v H, Stevens and Lovegrove [2006] 2 Cr App (S) 68. Those authorities supported stern punishment, where appropriate, for deliberate disobedience of a court order even if the substantive conduct would attract a much lower maximum penalty.

4. Applying section 143 of the Criminal Justice Act 2003, the applicant’s culpability was very high. He breached the order almost immediately and had a long history of like conduct, previous imprisonment and failure to heed court orders. Harm included the damage which breach of a court order causes to public confidence in the administration of justice. Those aggravating features justified a sentence well above the guideline range of up to 26 weeks.

5. Under section 142 of the Criminal Justice Act 2003, deterrence was a legitimate sentencing purpose. The judge was entitled to take the practical likelihood of renewed breach into account and to impose a finite term extending to the day after the full hearing of the order.

By way of material obiter, the court cautioned that a widely framed anti-social behaviour order must not be used to circumvent modest statutory maxima or to criminalise conduct outside the real social concerns addressed by the legislation.

• Court of Appeal (Criminal Division)—refused leave to appeal against sentence and upheld the 48-week term: [2013] EWCA Crim 1418.
• Portsmouth Crown Court—following a jury trial, convicted the applicant of breaching the interim anti-social behaviour order and sentenced him to 48 weeks’ imprisonment on 19 June 2013.
• West Hampshire Magistrates’ Court—made the interim anti-social behaviour order on 28 February 2013. The full hearing was adjourned to 13 August 2013.